dismissed EB-3 Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 25, 2024 In Re: 30452555 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a provider of health care products and services, seeks to employ the Beneficiary as an 
area immunoassay and clinical chemistry specialist. It requests his classification as a skilled worker 
under the third preference immigrant classification. Immigration and Nationality Act ( the Act) section 
203(b )(3)(A)(i), 8 U.S.C. § l 153(b )(3)(A)(i). This employment-based immigrant classification allows 
a U.S. employer to sponsor a noncitizen for lawful permanent resident status to work in a position that 
requires at least two years of training or experience. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary met the minimum education requirements stated on the labor 
certification. We dismissed the Petitioner's appeal of the Director's decision. The Petitioner 
subsequently filed a combined motion to reopen and reconsider, followed by three motions to 
reconsider, and we dismissed all four motions. The matter is now before us on a fifth motion to 
reconsider. 8 C.F.R. § 103.5(a). 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the motion 
to reconsider. 
A motion to reconsider must establish that our prior decision was based on an incorrect application of 
law or policy and that the decision was incorrect based on the evidence in the record of proceedings 
at the time of the decision. 8 C.F.R. § 103.5(a)(3). We do not consider new facts or evidence in a 
motion to reconsider. 
In dismissing the Petitioner's appeal and four subsequent motions, we have considered the Petitioner's 
legal arguments, as well as additional evidence submitted in support of the Petitioner's motion to 
reopen. Our prior decisions are part of the record ofproceeding and are incorporated here by reference. 
The Director determined that the record did not establish that the Beneficiary met the minimum 
education requirements for the offered position as stated on the labor certification. 1 Specifically, the 
Director determined that the labor certification states that a U.S. bachelor's degree or a foreign 
equivalent degree is the primary, minimum education required for the offered position, and that no 
alternate combination of education and experience is acceptable. We have agreed with the Director, 
and the Petitioner does not disagree, that the record reflects that the Beneficiary, whose foreign degree 
is equivalent to two and one-half years of undergraduate study, does not possess such a degree and 
therefore does not meet the stated primary, minimum education requirement. 
In our prior decisions dismissing the Petitioner's third and fourth motions to reconsider, we concluded 
it did not establish, as required by 8 C.F.R. § 103.5(a)(3), that we incorrectly applied the law or users 
policy in our decision dismissing its second and subsequent motions. Rather, we determined that the 
Petitioner's motion to reconsider reiterated legal arguments and cited to non-binding authorities that 
we had previously reviewed and addressed in our prior decisions. 
With this fifth motion, the Petitioner again contests the correctness of our prior adverse decisions and 
asserts that we have continually erred in upholding the denial of this petition. In its brief, the Petitioner 
reiterates its assertion that we did not consider all language of the labor certification, including 
language it asserts identifies an alternate minimum requirement. The Petitioner also asserts that our 
prior decisions did not address all evidence in the record, specifically an evaluation of the 
Beneficiary's education and experience prepared by ______________ 
On appeal and in prior motions, the Petitioner has asserted that Part H.14 of the labor certification 
("Specific skills or other requirements") identifies the alternate minimum education requirement for 
the offered position, which states, in part: "[the Petitioner] will accept educational equivalency 
evaluation prepared by qualified evaluation service or in accordance with 8 CFR 
§ 214.2(h)(4)(iii)(D)." 2 The Director noted that the Petitioner's reliance on 8 C.F.R. 
§ 214.2(h)(4)(iii)(D) is misplaced as it is applicable to the H-lB nonimmigrant classification. In our 
decision dismissing the appeal, we addressed the Petitioner's argument and stated, 'The minimum 
education and experience required by the labor certification, however, is unchanged by the language 
in Part H.14 ... The plain language of the labor certification does not support the Petitioner's claimed 
intent to accept less than a U.S. bachelor's or foreign equivalent degree to meet the minimum 
educational requirement for the proffered position." We again addressed this argument in dismissing 
the Petitioner's motion to reopen, noting that "DOL was not informed that the Beneficiary sought to 
rely on an alternate combination of education and experience." On its current motion, other than 
expressing its disagreement with our decisions, the Petitioner has not articulated or demonstrated how 
we misapplied the law or users policy in our prior decisions. Rather, the Petitioner disagrees with 
1 In employment-based immigration an employer first obtains an approved labor certification from the U.S. Department 
of Labor (DOL). See section 2 l 2(a)(5) of the Act, 8 U.S.C. § l l 82(a)(5). Next, the employer files an immigrant visa 
petition with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Finally, 
ifUSCIS approves the petition, the beneficiary may apply for an immigrant visa abroad or, if eligible, adjustment of status 
in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
2 The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D), which is applicable to the H-IB nonimmigrant classification, provides 
several options for equivalency to completion of a college degree, including, among other things, a determination that the 
equivalent of a degree has been acquired through a combination of education, specialized training, and/or work experience. 
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our prior decisions and urges us to "include the acceptable alternative requirements m [the] 
adjudication of the case." 
On motion the Petitioner also asserts that our prior decisions did not address the evaluation of the 
Beneficiary's education and employment experience prepared by 
College. However, I evaluation was specifically discussed in our dismissal of the appeal. 
We noted that the evaluation concludes that the Beneficiary possesses the equivalent of "two and one­
half years of undergraduate coursework, and that the combination of this education and his over 15 
years of experience in computer science and engineering is equivalent to a bachelor's degree in 
computer science and engineering from a regionally accredited undergraduate-level program or 
institution in the United States." However, the Petitioner does not explain how this evaluation 
demonstrates that the Beneficiary meets the primary, minimum education requirement stated on the 
labor certification - a U.S. bachelor's degree or a foreign equivalent degree, with no combination of 
education and experience accepted. 
The Petitioner's assertions in the current motion again reargue facts and issues that have already been 
addressed in our previous decisions. See e.g., Matter of O-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) ("a 
motion to reconsider is not a process by which a party may submit, in essence, the same brief presented 
on appeal and seek reconsideration by generally alleging error in the prior Board decision"). The 
Petitioner has not shown proper cause for reconsideration of our prior decision. We will not 
re-adjudicate the petition anew and, therefore, the underlying petition remains denied. 
ORDER: The motion to reconsider is dismissed. 
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